HomeMy WebLinkAboutR-1994-117 Yakima Goodwill Industries SiteRESOLUTION NO. R-94 - 117
A RESOLUTION authorizing and directing the City Manager and City Attorney
of the City of Yakima to execute and implement a Prospective
Purchaser Consent Decree Re: Yakima Goodwill Industries Site
with the Washington State Department of Ecology.
WHEREAS, the Washington State Legislature has appropriated $3,000,000.00
in State funds for the construction of a vital criminal justice facility known as the
Yakima Police Station/Legal Center, and the City has made available matching
funds for this project; and,
WHEREAS, on November 16, 1993, the City Council decided that the Yakima
Police Station/Legal Center should be constructed on the Wikstrom Block bordered
by Walnut Street, South Third Street, Spruce Street, and South Second Street; and,
WHEREAS, on December 14, 1993, the City Council by resolution authorized
and directed the City Manager to acquire properties owned by Goodwill Industries,
the Washington Military Department, and Wikstrom Family in order to enable
construction of the Yakima Police Station/Legal Center, and,
WHEREAS, on March 22, 1994, the City Council authorized and directed the
City Manager to conduct environmental audits of the properties located within the
Wikstrom Block in compliance with Federal and State laws; and
WHEREAS, the results of the environmental audit of the Goodwill Industries
site indicated that some Perchloroethene (PCE) contamination was present in the
soils and ground water at levels in excess of the concentrations permitted under
State law, thereby necessitating some type of remedial action; and,
WHEREAS, pursuant to Council direction to reduce the City's risk of
Potential Liable Party (PLP) liability in the Yakima Railroad Area, the Police Chief
and City Attorney have negotiated a Prospective Purchaser Consent Decree with
the Washington State Department of Ecology, and,
WHEREAS, the Prospective Purchaser Consent Decree provides that the City
will clean up the PCE contamination at the Yakima Goodwill Industries site as part
of the Police Station construction process in exchange for a promise by the
Department of Ecology not to sue the City or otherwise designate the City as a PLP
in the Yakima Railroad Area; and,
WHEREAS, the City Council finds and determines that the execution and
implementation of this Prospective Purchaser Consent Decree is in the best
interest of the City of Yakima because it will allow construction of the Police
(dlw)res/Yakima Goodwill Industries
Page 1
Station/Legal Center to continue on schedule, thereby avoiding lengthy project
delays and significantly increased construction costs; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The Yakima City Manager and City Attorney are hereby authorized and
directed to execute the "Prospective Purchaser Consent Decree Re: Yakima
Goodwill Industries Site" with the Washington State Department: of Ecology :in
substantially the same form as attached hereto. The City Manager and City
Attorney are further authorized and directed to take all necessary and prudent
actions to implement the attached Consent Decree as contemplated therein,
including but not limited to, obtaining professional environmental engineering
and technical services to conduct the investigative and remedial actions set forth
in the Consent Decree in a total dollar amount not to exceed the existing budget
authority for land acquisition, subject to the review and approvall of all contract
documents by the City Attorney.
ADOPTED BY THE CITY COUNCIL this lath day of sPpt-amber , 1994.
ATTEST:
Mayor
t(;
(--
CityClerk
(d1w)res/Yalcirma Goodwill Industries
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SUPERIOR COURT OF WASHINGTON IN AND FOR YAKIMA COUNTY
STATE OF WASHINGTON DEPARTMENT OF) No.
ECOLOGY, ) )
Plaintiff, ) PROSPECTIVE PURCHASER
) CONSENT DECREE RE: YAKIMA
v. ) GOODWILL INDUSTRIES SITE
)
CITY OF YAKIMA, a Washington municipal )
corporation, ))
Defendant. )
14 TABLE OF CONTENTS
15 ( Page
16 INTRODUCTION 2
I. AUTHORITY, JURISDICTION AND VENUE 4
17 II. DEFINITIONS 6
III. DESCRIPTION OF SITE AND CONTAMINATION PROBLEMS 6
18 I IV. DESCRIPTION OF PROPOSED PROJECT 8
V. WORK TO BE PERFORMED 9
19 ! VI. DESIGNATED PROJECT COORDINATORS 12
VII. PERFORMANCE 13
20 j VIII. CERTIFICATION OF THE CITY OF YAKIMA 13
IX. CERTIFICATION OF THE CITY OF YAKIMA AND SUCCESSORS AND
21 ASSIGNS 1313
X
X. CONVEYANCE OF PROPERTY
22 XI. AMENDMENT OF CONSENT DECREE; ADDING NEW PARTIES TO 14
DECREE 14
23 � XII. DISPUTE RESOLUTION 16
XIII. CONTRIBUTION PROTECTION 17ER MTCA; REOPENERS
24 XIV. COVENANT NOT TO SUE XV. THE CITY OF YAKIMA RESERVATION OF RIGHTS 21
25 , XVI. DISCLAIMER 2121
XVII. RETENTION OF RECORDS 21
6 1 XVIII. SITE ACCESS
lap/goodwill/consent decree draft 3 8/1/94 9:40 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
GOODWILL INDUSTRIES SITE - 1
PRESTON GATES & EiuS
5000 Colamsia Calmer
701 flits Avenge
Seattle, Wastinpoo 98104
Telepsoae: (206) 623-7380
OFFICE OF THE CITY ATTORNEY
art OF YAKIMA
424 East Yakima Avenge, Ste. 100
Yakima. wastangtoo 98901
Teiepbaoe: (509) 5734030
1 XIX. OTHER APPLICABLE LAWS
XX. DURATION OF DECREE AND RETENTION CO JURISDICTION
2 XXI. PUBLIC NOTICE AND WITHDRAWAL23
23
XXII. REMEDIAL ACTION COSTS 24
3 XXIII. EFFECTIVE DATE
4 INTRODUCTION
5 This prospective purchaser consent decree ("Decree") is made and entered into by and.
6 between the Washington State Department of Ecology ("Ecology") and the City of Yakima, a first
7 class, charter city. Successors in Interest and Assigns may become parties to this Decree as provided
8 ; herein, in Section XI.
9 1. WHEREAS, the purpose of this Decree is to performs an Interum Action for
10 source control and complete soil remediation of PCE, TPH, and other known ha7..rdous substances
11 which have been released at the Yakima Goodwill Industries site (the "Property"), to promote the
12 public interest by expediting cleanup activities at the Property and by facilitating construction of a
13 : police station/legal center in Yakima, Washington, to provide for the preparation of a Phase I Rem
14 ( Investigation (RI) at the conclusion of the Interim Action, and to resolve the possible liability of the
15 I City of Yakima for known hazardous substances which have been released at the property„ The
16 Property is located at 222 South Third Street and is bounded by South Third Street on the east, a
17 military armory on the north, East Spruce; Street on the south and an alley on the west.
18 2. WHEREAS, the City of Yakima has undertaken substantial steps to acquire the
19 i Property by purchase or condemnation in exercise of its powers of eminent domain under ch.
20 35.22.280(6) RCW. The City of Yakima has entered into a Purchase and Sale Agreement, dated
21 February 11, 1994, with Goodwill Industries Rehabilitation Center, Inc., a Washington charitable
22 non-profit corporation, the current owner of the Property ("Goodwill"), to purchase the Property. The
23 City of Yakima passed a condemnation ordinance, dated August 9, 1994, authorizing the acquisition of
24 ! the Property by condemnation, if necessary, in the event that current negotiations to purchase the
25 Property prove unfruitful.
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3. WHEREAS, the City of Yakima proposes to demollish the existing; .structu`
lop/goodwill/consent decree draft 3 8!1/94 123 PM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
,'I,,,f-vrvutraT T TXTTNTT('1 DTT~C CTTF -
PRESTON GATES & Ell$
5000 Colombia Cama
701 ?Alb Avenge
Stank. Waidingwo 9$104
Teiepbaoe: (206) 62475$0
OFFICE (Try
ITY E CWY
OF YAKIMA
424 East Yakima Ammo. Se. 100
Yakima. WasEim$too 91901
Tekpbooe: (504) 575-0
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the Property and construct a police station/legal center (the "Center") on the Property and several
adjacent parcels currently owned or leased by the City of Yakima.
4. WHEREAS, the Center is needed to address overcrowding of existing Police
Department offices and prisoner holding facilities, to house the City of Yakima's entire City Attorney's
Office, and provide needed space for a 24-hour 911 emergency communications center for the City of
Yakima and other Yakima Valley jurisdictions.
5. WHEREAS, the State of Washington has a substantial interest in this criminal
justice facility and has contributed both state-owned property (military armory) and $3,000,000 in
capital construction funds appropriated by the Washington State Legislature.
6. WHEREAS, the Center is an essential public facility under the Growth
Management Act, RCW 36.70A.200(1), the Property is a key parcel of land needed to realize
completion of the Center, and no other reasonable alternative for siting the Center exists.
7. WHEREAS, in the absence of this Decree, the City of Yakima would, as a
consequence of acquiring the Property, incur potential liability under RCW 70.105D.040(1)(a) of the
Model Toxics Control Act ("MTCA") for performing remedial actions or for paying remedial costs
incurred by Ecology, resulting from the release or threatened release of hazardous substances at the
Property.
8. WHEREAS, the City of Yakima has performed an Environmental Site
Assessment which revealed that groundwater at the Property exceeds MTCA Method A and Method B
cleanup levels for certain hazardous substances. In addition, soil samples taken at the Property exceed
MTCA Method A cleanup levels for certain hazardous substances, and sump sediment samples taken at
the Property exceed MTCA Method A and B cleanup levels for certain hazardous substances. The
sump sediments have been collected and containerized by Goodwill for proper disposal prior to
transfer of title to the Property to the City of Yakima.
9. WHEREAS, this Decree promotes the public interest by expediting hazardous
substance remediation at the Property and by facilitating construction of needed public law
lap/goodwill/consent decree draft 3 V1194 9:19 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
GOODWILL INDUSTRIES SITE - 3
PRESTON GAZES & ELLIS OFFICE
CITY THE CITY YMA4
TORNEY
50on Cblt®6ia Crew
701 Ms Areae 424 Ea" Yams Mame. Ste. 100
Sen, Wubinpoc 98104 Yakima. Wigan= 98901
Tekpba= (206) 6217580 Tekpbooe: (309) 575-6030
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enforcement, legal, and safety facilities.
110. WHEREAS, the City of Yakima has offered to further certain Ecology goals as
provided in this Decree, in exchange for a covenant not to sue and protection from contribution under
MTCA. Among other things, the City of Yakima will, as part of any redevelopment activities
undertaken by the City of Yakirna on the Property, conduct necessary soil remediation to bring the
Property into compliance with MTCA Method A cleanup standards for tetrachloroethene (also referred
to as perchloroethene - "PCE") and total petroleum hydrocarbons ("TPH"). The City of Yakima will
also, according to Ecology's requirements, remediate other hazardous substances which, during the
process of remediating PCE and TPH contaminated soils, are encountered in concentrations requiring
remedial action under MTCA standards. The City of Yakima also agrees to perform groundwater
monitoring according to the terms of this Decree.
11. WHEREAS, the City of Yakima's plans for the Property are not likely to
aggravate or contribute to the Present Contamination on the Property, interfere with remedial actio
that may be needed on the Property, or increase human health risks to persons at or in the vicinity of
the Property.
12. WHEREAS, this Decree will provide for the first source removal of l?CE
contaminated soil in the Yakima Railroad Area, and generally an environmentally beneficial. ]project and
is within the public interest.
13. WHEREAS, the Court is fully advised of the reasons for entry of this Decree,
and good cause having been shown:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
1. AL T TT30RITV MIS ITCTTnN AND VENCs
14. This Court has authority, under Washington's Uniform Declaratory Judgment
Act (RCW 7.24 et.) to resolve the liability of the parties to this Decree.
15. This Court has jurisdiction over the subject matter and over the parties pursuant
to MTCA, ch. 70.105D RCW. Venue is proper in Yakima County pursuant to RCW
lap/goodwill/consent decree draft 3 8/1/94 9:19 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
Cr,nnnwu x rND USTREES SITE - 4
PRESTON GATES & ELLS
5000 Catembia Cerner
701 Rttb Avenge
Seattle. Wuticpoo 98104
Teiepboo: (206) 6237580
OFFICE OETHE CITY ATTORNEY
QTY OF YAKIMA
424 East Yakima A,egx. Ste. 100
Yafamm, Washington 98701
Telepboce: (509) 575-6030
1 i 70.105D.050(5)(b).
2i
16. Authority is conferred upon the Washington State Attorney General by RCW
3 70.105D.040(4)(a) to agree to a settlement with any potentially liable person ("PLP") if, after public
4 notice and hearing, Ecology finds the proposed settlement would lead to a more expeditious cleanup of
5 i hazardous substances in compliance with cleanup standards under RCW 70.105D.030(2)(d). RCW
6 70.105D.040(4)(b) requires that such a settlement be entered as a consent decree issued by a court of
7 competent jurisdiction.
8 17. Authority is also conferred upon the Washington State Attorney General by
9 RCW 70.105D.040(5) to settle with non-PLPs who propose to purchase, redevelop, or reuse a
10 � property where hazardous substances have or may have been released so long as the settlement
11 provides a substantial public benefit, yields substantial new resources to facilitate and expedite
12 l remedial action, and so long as the redevelopment or reuse is not laxly to contribute to the existing
13 I release or threatened release, interfere with remedial actions that may be needed at the site, or increase
14 health risks to persons at or in the vicinity of the site.
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18. Ecology has determined that hazardous substances have been released at the
16 Property. The City of Yakima has certified that it is not now a PLP for the Property. Were the City of
17 Yakima to acquire an interest in the Property, however, without this Prospective Purchaser Consent
18 Decree, it could be a PLP as an owner under RCW 70.105D.040(1)(a).
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19. This Decree is entered prior to the City of Yakima's acquisition of the Property
20 to resolve its possible liability for known hazardous substances which have been released at the
21 ' Property and to facilitate a more comprehensive and expeditious remedial action at the Property than
22 otherwise would occur.
23 I 20. By entering into this Decree, the City of Yakima agrees not to challenge
24 Ecology's jurisdiction in any proceeding to enforce this Decree. The City of Yakima consents to the
25 I issuance of this Decree and has agreed to perform an interim remedial action and monitoring as
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specified in this Decree.
lap/goodwill/consent decree draft 3 g/1/94 9:19 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
nnr wn T TATTITTCTRTFC cri'F - 5
PRESTON GATES & ELLS
5000 C lambis Ceara
701 RM Mew
Sea4Ue, %VUHngtoo 9ft0s
Tekepboae: (206) 6217530
OFFICE OF THE CITY ATTORNEY
ary OF YAKIMA
424 Eau Yakima Avenue. Sic. 100
Yakima. Wsabingtoo U901
Tekepbooe: (509) 575-6030
TI. DEFINITIONS
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21. Unless otherwise expressly provided herein, terms used in this Decree that are
3 defined in MTCA or in regulations promulgated under MTCA shall have the meaning assigned to them
4 in MTCA or in such regulations.. Whenever terms listed below are used in this Decree or in the
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attachments hereto, the following definitions shall apply:
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"Decree" shall mean this Decree and all attachments hereto. In the event of conflict
7''
between this Decree and any attachment, this Decree shall control;
8 "Paragraph" shall mean a portion of this Decree identified by an Arabic numeral;
9 "PCE" shall mean the substance known by a variety of names, including, but not
10 limited to, tetrachloroethene, perchloroethylene, and specifically identified by Chemical Abstract
11 System Number 127-18-4;
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"The Property" shall mean the Yakima Goodwill Industries site bounded by South
13 f Third Street on the east, East Spruce Street on the south, and an alley on the west, depicted on
14 Attachment B and legally described in Attachment A, attached hereto and incorporated by reference;
15 "Section" shall mean a portion of this Decree identified. by a Roman numeral and
16 including one or more Paragraphs.
17I"Successors in Interest and Assigns" shall mean any party who acquires an interest in
18 the Property through purchase, lease, transfer, assignment, or otherwise.
19 In. DESCRIPTION OF S AND CONTA ATTON FPROBLEM
20 22. The Property is located at 222 South Third Street in Yakima, Washington and.
21 occupies the site bounded by South Third Street on the east, a military armory on the north, East
22 Spruce Street on the south, and an alley on the west.. Hazardous substances, including PCE, have
23 historically been used at the Property.
24 23. A number of businesses, including automobile dealerships and dry-cleaning
25 facilities, conducted business on the Property between 1942 and the present. Handling and disposal
26 practices have not been established. Several drains and a sump are located within the Yakima
lap/goodwill/consent decree draft 3 8/1)94 9:19 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAK,IMA
nnf�Tl\S STT T TATTITTCTRTFC CTTF - 6
PRESTON GATES i EMS
S000 Columbia Caner
701 Mb Avenue
Snob. Wuhiogtao 98104
Telepboae: (206) 623-7580
OFfX arrYYOFYAIQMA ATTORNEY
424 East Yalta Amu. Ste. 100
Yatma, Washington 98901
Te)rpDone: (509) 575-6030
Goodwill Industries building and may have acted as conduits to the subsurface.
24. A retail store is currently located on the Property, and a grated sump is located
3 in the retail store's production area. This sump appears
to have been located beneath a vehicle wash
4 rack when the facility was used as automobile dealership/body shop.
5 25. The City of Yakima conducted an Environmental Site Assessment, completed in
6 July 2994, which revealed soils on the Property with elevated concentrations of TPH and exceeding
7 MTCA Method A cleanup levels for PCE. In addition, other substances have been detected below
8 MTCA action levels as described in Attachment C which is incorporated by reference herein.
9 26. The City of Yakima's Environmental Site Assessment revealed sump
sediments
10 on the Property exceeding MTCA Method A cleanup levels for TPH and MTCA Method B cleanup
11 levels for vinyl chloride. These sump sediments have been collected and containerized by Goodwill
12 for proper disposal prior to transfer of title to the Property to the City of Yakima.
327. The City of Yakima's Environmental Site Assessment revealed groundwater on
4 I the Property exceeding MTCA Method A cleanup levels for PCE and MTCA Method B cleanup levels
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15 for chloroform.
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28. Hazardous substances slightly in excess of MTCA cleanup levels for PCE and
17 j chloroform have been found in groundwater at the adjacent upgraclient parcel which was formerly
18 owned by Wikstrom Motors (the "Wikstrom Parcel"). The City of Yakima acquired the Wikstrom
Parcel in 1994, in anticipation of construction of the Center. In January 1989, Ecology conducted a
19 "EPA").
20 site inspection at the Wikstrom Parcel for the United States Environmental Protection Agency
21 ` At the time of the inspection, no evidence of past on-site release or disposal of hazardous substances
22 was identified, and EPA deferred additional characterization to Ecology. Subsequently, prior to its
23 acquisition by the City of Yakima, petroleum contaminated soils were removed from the Wikstrom
24 Parcel. In a memorandum dated October 20,1993, attached hereto and incorporated herein as
i Attachment D. Ecology stated that the removal of petroleum contaminated soils from the Wikstrom Site
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was successful and concluded the Wikstrom Parcel was no longer a source of contamination. Ecology
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PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
GOODWILL INDUSTRIES SITE - 7
RESTON GATS it t111s
5000 Catambia Omer
701 Rflb Mom
seask. Wasbittpoa 91104
Tekgpbooe: (206) 623.7580
OFFICE MY CITY AKI ATTORNEY
424 East Yakima Avenge. Ste. 100
Yakima. Wubm6toa 99901
Tekepbaoe: (509) 5716030
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also concluded that the presence of tetrachloroethene and chloroform in the groundwater at the
Wikstrom Site does not require further remedial action.
29. Ecology has made a determination of "No Further Action" for the Wikstrom
Parcel and noted that "[a] past investigation during the course of a site hazard assessment being
performed by Ecology found no evidence of a release of tetrachloroethene [PCE], in addition no
tetrachloroethene (PCE] was detected in the soil samples taken from the Wikstrom Site during the
independent remedial actions." Ecology Memorandum, October 20, 1993 (Attachment D). This
conclusion was corroborated by the results of samples from monitoring wells installed by the City of
Yakima which found PCE in the groundwater on the downgradient edges of the Wikstrom Parcel,
which is upgradient to the Property, at non -detect concentrations.
30. The Property is located within the Yakima Railroad Area. The Yakima Railroad
Area is a mile -wide corridor straddling First Street and extending south from Lincoln Avenue on the
north to Ahtanum Road in Union Gap. Groundwater within this area has been contaminated by PC Pr—
DEKEIEFION OF PROPOSED PROJECT
31. The City of Yakima proposes to acquire the Property through purchase or
condemnation, as necessary, through its powers of eminent domain, pursuant to RCW
36.70A.200(1). The City of Yakima proposes to demolish the existing structure and to construct a
police station/legal center, a two-story free-standing facility, on both the Property and on adjacent
property to which the City of Yakima already holds title. Funds for the project will be provided by a
$3,000,000 grant appropriation from the State Legislature, revenues from additional utilities taxes, and
revenue from the sale of limited tax general obligation bonds. In addition, the State of Washington
Military Department has granted the City of Yakima a 99 -year ground lease for $1.00 for a parcel
adjacent to the Property , which parcel is necessary to construct the Center.
32. The Center will house the City of Yakima Police Department, all administrative,
operational, investigative, training and support service functions associated with the City of Yakima
Police Department, and the Offices of the City Attorney.
lap/goodwill/consent dixtee draft 3 8/1/94 9:19 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
GOODWILL INDUSTRIES S[1 b " 8
PRESTON GATES t ELLIS
5000 Calambia Cramer
701 FM Avatar
Sauk. Wasbiagtoo 98104
Tekpbooe: (206) 6237580
OFFICX OF THE (TTY ATTORNEY
PTY OF YAKIMA
424 Eat 'fah= *wove. Ste.
100
Yaivaoi. wasicai
Teiepbooe: (509) 575.6030
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33. The Center is sized to house and designed to support area -wide -911 emergency
communication services for the City of Yakima and other upper Yakima Valley jurisdictions.
34. The Center will house a prisoner holding facility for up to 80 criminal
defendants.
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35. Development of the Center will further urban renewal/revitalization in this area
of downtown Yakima, in particular, by the removal of several public safety hazards, including
structures which have been abandoned, bumed-out and condemned.
36. Ecology has determined that remediation of contaminated soils at the Property
and monitoring of groundwater at the Property is required. The primary objective of any soil
remediation undertaken on the Property will be to stop any further release of PCE into groundwater. A
secondary and related objective will be to reduce PCE and TPH levels in the soil above the
groundwater table to conform to MTCA cleanup standards. Other hazardous substances which are
encountered during the process of remediating PCE and TPH contaminated soils in concentrations
requiring remedial action under MTCA standards, will be remediated according to Ecology's
requirements. Such soil remediation and groundwater monitoring will be conducted as part of the City
of Yakima's redevelopment of the Property according to Section V of this Decree and Attachment E.
A third and related objective will be to prepare a Phase I Remedial Investigation (RI) at the conclusion
of soil remediation.
37. The City of Yakima's remediation of contaminated soil, installation of
groundwater monitoring wells, and monitoring of groundwater will lead to a more expeditious
remediation of hazardous substances at the Property and will promote protection of the public health
and the environment.
V. WORK TO BE PERFORMED
38. This Decree contains a program designed to protect public health, welfare, and
the environment from the known release of hazardous substances or contaminants at, on, or from the
Property. The requirements of such program are outlined in detail in the Interim Action Work Plan in
tip/goodwill/consent decree draft 3 g11194 9:19 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
GOODWILL INDUSTRIES SITE - 9
PRESTON GATES & EMS
5000 Colombia Censer
701 Alta Annie
Sank. Wasting= 96104
Tekpbcm: (206) 623.7560
OFFICE OF THE CITY AVORNEY
CITY OF A to
434 East Yakima Meow. Sm.1100
Washing=Yakima. Waaaini
Telepbaoe: (509) 575-6030
1 Attachment E, attached hereto and incorporated herein.
2
39. The City of Yakima or its Successors in Interest and Assigns will perform an
3 Interim Action consisting of soil sampling and remediation as described in Attachment E. Soil
4 remediationas will be commenced and comp letedof any construction excavation and grading
part
5 undertaken for redevelopment of the Property. Soil known to be contaminated with PCE and TPH in
6 areas of the Property being excavated and graded for redevelopment of the Property will be removed
7 for treatment or disposal. The City of Yakima will also, according to Ecology's requirements,
8 remediate other hazardous substances which are encountered during the process of remediating PCE
9 i' and TPH contaminated soils in concentrations requiring remedial action under MTCA standards. Such
10 removal of contaminated soil will continue until analytical results of excavation sidewall and bottom
i
11 i samples are below cleanup levels, or until groundwater contact (approximately fourteen (14) feet in
12 '+ May, 1994) or the adjacent streets (South Third Street and East Spruce Street) are encountered. The
13 j cleanup criteria used will be MTCA Method A cleanup levels for PCE and TPH in soil. Treatment
14 ! disposal of the contaminated soil will be performed in accordance with MTCA and other applicable
15 I regulations and as described in Attachment E.
16
40. The City of Yakima or its Successors in Interest and Assigns will install two (2)
17 groundwater monitoring wells, as depicted in Figure 2 of Attachment E, during construction of the
18 Center, in addition to the two (2) groundwater monitoring wells already installed as part of the
19 Environmental Site Assessment for the Property. Collectively, the wells are positioned to provide a
re
presentative sampling of groundwater conditions surrounding the Property,em ss on the
with P�i
20 p
21 ' downgradient boundaries. The City of Yakima or its Successors in Interest and Assigns will sample
22 and analyze groundwater for the presence of PCE in accordance with Attachment E. Groundwater
23 sampling shall commence upon installation of the groundwater monitoring wells. Results will be
24 submitted to the Ecology designated project coordinator within thirty (30) days following sampling.
the deli ted Ecology project
25
An interim groundwater monitoring report will be submitted to gna
26 coordinator at the end of one year. At that time, Ecology will evaluate sample results. In the eve,:
lap/goodwill/consent decree draft 3 8/1/94 9:19 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
GOODWILL INDUSTRIES SITE - 10
pRES ON GATES & ALIS
5000 Coledbia censer
701 Fills Mahe
Seaak, WaUEingtoo 98104
Telephone: (205) 623.7580
OFFICE 1F THE CITY ATTORNEY
3TY OF YAKIMA
424 East Yakima Avenue, Su. 100
Yin_ Wathingtbe 118901
Telephone: (509) 575.6030
there is a significant increase in PCE levels, quarterly sampling will be continued for another year. A
significant increase in contaminant levels shall be deemed to have occurred in the event there is an
3 exceedance of a ninety-five percent (95%) upper confidence interval for specified contaminants derived
4 from methods specified in the Department of Ecology Taxies Cleanup Program Statistical Guidance for
5 Site Managers, dated August 1992.
6 41. Provided that there is no significant increase in PCE levels (as defined above),
7 sampling and analysis will continue for another year on a semi-annual basis, with results reported to
8 the designated Ecology project coordinator within thirty (30) days following sampling, with a final
9 report on the two years of groundwater monitoring submitted within ninety (90) days of conclusion of
10 sampling.
11
42. The City of Yakima and its Successors in Interest and Assigns agree to exercise
12 due care in the demolition, removal or development of any structure or improvement, including, but
3 not limited to, USTs, buildings, paving, gravel surfacing, tanks, piping, utilities, monitoring wells, or
14 other surface improvements.
15 43. In the event the City of Yakima or its Successors in Interest and Assigns
16discover any contamination not known, documented or suspected to exist on the Property as described
17 i in Section III, the City of Yakima and Successors in Interest and Assigns agree to a) notify Ecology
18 of exposure of contaminated or potentially contaminated fill soils or of releases or threatened releases
19 of hazardous substances within forty-eight (48) hours of discovery, unless or except when immediate
20 response is required to prevent an imminent threat to human health or the environment in which case
21 the City of Yaldma and Successors in Interest and Assigns will notify Ecology immediately; and,
22 I b) notify Ecology of any plans to characterize the fill materials encountered at the site with respect to
23 ; hazardous substance and/or dangerous wastes characteristics, prior to initiating such characterization.
24 A response plan, which may include a sampling and analysis plan, will be developed at the time of
25 discovery of such contamination by the City of Yakima or its Successors in Interest and Assigns, and
26
submitted to Ecology for Ecology's approval. Nothing herein precludes Ecology from taking action or
lap/$oodwill/conteat decree draft 3 $/1194 9:19 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
GOODWILL INDUSTRIES SITE - 11
PRESTON GATES & E LIS
3000 Columbia Center
701 fifth Avenue
Stank, Washington 96104
Tekpboae: (206) 6237380
OFFICE TTORNEY
Cr Y YATHE CITYKIMA
134 East Yak111311 Avenue. ate. 100
TeWashington
(309)5-6030
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requiring action to address such releases consistent with the terms and conditions of this Decree.
Nothing herein exempts the City of Yakima or Successors in Interest and Assigns from notification
requirements under all applicable federal and state laws and regulations, as provided in Section XVIX:
of this Decree.
VI. DESIGN -TED PROJECT COORDINATORS
44. The project coordinator for Ecology is:
Rick Roeder
Site Manager
Washington Department of Ecology
Central Regional Office
106 South Sixth Avenue
Yakima, Washington 98902
The project coordinators for the City of Yakima are:
Raymond L. Paolella, City Attorney
Lawrence A. Peterson, Assistant City Attorney
City of Yakima
424 East Yakima Avenue
Suite 100
Yakima, Washington 98901
45. Each project coordinator shall be responsible for overseeing the implementation
of this Decree. The Ecology project coordinator will be Ecology's designated representative at the
Property. To the maximum extent possible, communications between Ecology and the City of Yakima
or its Successors in Interest and Assigns and all documents, including reports, approvals, and other
correspondence concerning the activities performed pursuant to the terms and conditions of this
Decree, shall be directed through the project coordinators The project coordinators may designate, in
writing, working -level staff contacts for all or portions of the implementation of the work plan
incorporated in this Decree as Attachment E. The project coordinators may agree to minor
modifications to the work to be performed without formal amendments to this Decree. Minor
modifications will be documented in writing by Ecology.
46. Any party may change its respective project coordinator. Written notification
shall be given to the other parties at least ten (10) calendar days prior to the change.
PoHRPE
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAIKIMA
GOODWILL INDUSTRIES SITE 12
PlZFSTON GATES & BETS
5000 Caiarabia Care
701?tbmem
Saab. a',aanpon 98104
Tebpbooc: (206) 623.7560
OFFICE OF THE QTY ATTORNEY
aIY OF YAKD
424 East Yakima Aeeaue.>S Ste.
0O
Yawn,Wtshogtoo
TekgCEe: (509) 5756030
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VII. PERFORMANCE
47. All work performed pursuant to this Decree shall be under the direction and
supervision, as necessary, of a professional engineer or hydrogeologist, or equivalent, with experience
and expertise in hazardous waste site investigation and cleanup. Any construction work must be under
the supervision of a professional engineer. The City of Yakima or its Successors in Interest and
Assigns shall notify Ecology in writing as to the identity of such engineer(s) or hytirogeologist(s), or
others and of any contractors and subcontractors to be used in carrying out the terms of this Decree, in
advance of their involvement at the Property.
VIII. CERTIFICATION OF THE CITY OF YAKIMA
48. The City of Yakima certifies that to the best of its knowledge and belief it has
fully and accurately disclosed to Ecology the information currently in its possession or control that
relates to the environmental conditions at and in the vicinity of the Property, or to the City of Yakima's
right and title thereto.
49. If the information provided by the City of Yakima pursuant to this Section is not
materially true and complete, the Covenant Not to Sue in Section XIV shall not be effective with
respect to the City of Yakima, and Ecology reserves all rights it may have against the City of Yakima.
IX. CERTIFICATION OF THE CITY OF YAKIMA AND SUCCESSORS AND ASSIGNS
50. The City of Yakima and its Successors in Interest and Assigns certify that they
did not participate in the discharge of hazardous materials at the Property.
51. If the certification provided by the City of Yakima or Successors in Interest and
Assigns pursuant to this Section is not true, the Covenant Not to Sue in Section XIV shall not be
effective with respect to the City of Yakima or its Successors in Interest and Assigns, and Ecology
reserves all rights it may have against the City of Yakima or Successors in Interest and Assigns.
X. CONVEYANCE OF PROPERTY
52. The restrictions, obligations and rights set forth in this Decree shall hereafter
run with the land and shall be binding upon any and all persons who acquire any interest in all or any
lap/goodwill/count decree draft 3 8/1/94 9:19 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
GOODWILL INDUSTRIES SITE - 13
PRESTON GATES & E11SS
5000 Calcutta Cerner
701 Fifth Mame
Scntk, Waatinpoa 4x104
Telepboae: (206) 6231510
OFFICE OTHE CITY TORNEY
F
YAKIMA
424 East Yakima maw, Ste. 100
Yakima. kpbooes�1(509) 575-6030
portion of the Property, provided that such persons become parties to this Decree and follow the ,
2 amendment procedures set forth in Section XL Within twenty-one (21) calendar days of the effective
3 i date of this Decree, the City of Yakima shall record a memorandum of this Decree with the Auditor's
4 j Office, Yakima County, Washington.
5 53. The City of Yakima and its Successors in Interest and Assigns may freely
6 alienate their interest, or any portion thereof', in the Property, provided that at least sixty (60) calendar
7 days prior to the date of any sale of all or any portion of the Property or lease of all or a material
8 1 portion of the Property, the City of Yakima or its Successors in Interest and Assigns proposing to
9 ;; transfer such interest shall, by use of the form of Notice of Proposed Transfer (Attachment:F), notify
10
Ecology of the proposed transfer, and the names of the proposed Successors in Interest and Assigns
11 i that would acquire such interest.
12 54. The Covenant Not to Sue shall not be effective with respect to any Successors
13 i in Interest and Assigns who fail to execute the attached Agreement of Successors in Interest and
14
Assigns, or a substantially equivalent document, and follow the amendment procedure set forth in
15 Section XI. Failure of the City of Yakima or Successors in Interest and Assigns who acquire an
16 interest in the Property and
who are subject to this Section's notification requirements to timely comply
17
with this Section's notification requirements shall subject such party to a stipulated penalty of $5,001,
18 i and does not in any way alter the rights and obligations of such party
as set forth in this Decree,
Ecology's 19including reservation of rights under Section XI of this Decree.
I g
20 I XI. �_ � �1__ � ' • � �
J_ v W :,R'I'TES TO DECD
21
55. This Decree may only be amended by a written stipulation among the parties to
22 1 this Decree that is thereafter entered and approved by order of the Court, except as provided in
23
Paragraph 57„ Such amendment shall become effective upon entry by the Court, or upon a later date
24 if such date is expressly stated in the parties' written stipulation or the Court so orders.
25 , 56. Amendments may cover any subject or be for any purpose agreed to by the
26 parties to this Decree, including for the purpose of making Successors in Interest and Assigns ne`
lap/goodwill/copal dasee draft 3 811/94 9:19 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
GOODWILL INDUSTRIES SITE - 14
PRESTON GATES &
5000 Cambia Center
701 'ling Mme
Seattle. Wasbagtoo 98104
Telepbone: (206) 6234580
OFFICE OF 71IE CITY ATTORNEY
(STY OF YAKIMA.
424 East Yakima Avenge. Ste. 100
WashIngtoo 98901
Telepbooe:(509) 575-6030
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parties to the Decree. If Ecology determines that the subject of an amendment requires public input,
Ecology shall provide thirty (30) days public notice prior to seeking entry of the amendment by the
Court, except that Ecology agrees that an amendment to make Successors in Interest and Assigns
parties to this Decree shall not require public notice or comment
57. As part of the notice to Ecology required by Section X of this Decree, when the
City of Yakima or Successors in Interest and Assigns contemplate conveyance of the Property, the
proposed Successors in Interest and Assigns shall request that the Decree be amended as required by,
and provided for in, this paragraph. The amendment to the Decree may be in the form of Attachment
G, "Agreement of Successors in Interest and Assigns." Ecology may only withhold consent to an
amendment malting Successors in Interest and Assigns party to this Decree if it provides written
notification to the party or parties notifying Ecology of the proposed transfer in interest pursuant to
Section X of this Decree. The written notification shall state that the City of Yakima or its Successors
in Interest and Assigns is in violation or will be in violation of a material term of the Decree. Such
written notification must be received within thirty (30) days of the date Ecology was notified of the
proposed transfer. If Ecology does not provide such notification within thirty (30) days, the Court is
authorized to enter the amendment without further action by Ecology. Provided, however, that failure
of Ecology to comment within thirty (30) days does not compromise or affect any rights Ecology may
have under this Decree, MTCA, or other applicable law.
XII. DISPUTE RESOLUTION
58. In the event a dispute arises as to an approval, disapproval, proposed
modification, or other decision or action by Ecology's project coordinator, the parties shall use the
dispute resolution procedure set forth below.
(1) Upon receipt of the Ecology project coordinator's decision, the City of
Yakima or its Successors in Interest and Assigns have fourteen (14) days within which to notify
Ecology's project coordinator of any objection to the decision.
(2) The parties' project coordinators shall then confer in an effort to resolve
Iap/goodwill/coasent decree draft 3 6/1/94 9:19 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
GOODWILL INDUSTRIES SITE - 15
PRESTON GATES & E11IS
5000 Colombia Cerner
701 Rfth Meow
Seattle. Wuiiogtoo 96104
Tekpboae: (206) 6237560
OFY7CE OF THE CITY TORNEY
aTY OF AKIMA
424 Em Yaloma Avenue. Ste. 100
Yakima. Wail:660t 59$901
Telepbate:
21
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the dispute. If the project coordinators cannot resolve the dispute within fourteen (14) days, Ecol(
project coordinator shall issue a written decision.
(3) The City of Yakima or its Successors in Interest and Assigns may then
request Ecology management review of the decision. This request shall be submitted in writing to the
Toxics Cleanup Program Manager within seven (7) days of receipt of Ecology's project coordinator's
written decision.
(4) Ecology's Toxics Cleanup Program Manager shall conduct a review of
the dispute and shall issue a written decision regarding the dispute within thirty (30) days of the City of
Yakima's or its Successors' in Interest and Assigns' request for review. The Toxics Cleanup Program
Manager's decision shall be Ecology's final decision on the disputed matter..
59. 1'f Ecology's final written decision is unacceptable to the City of Yakima or its
Successors in Interest and Assigns, the City of Yakima or its Successors in Interest and Assigns have
the right to submit the dispute to the Court for resolution. The parties agree that one judge should,
retain jurisdiction over this case and shall, as necessary, resolve any dispute arising under this Decree.
In the event the City of Yakima or its Successors in Interest and Assigns present an issue to the Court
for review, the Court shall review the action or decision of Ecology under an arbitrary and capricious
standard of review.
60. The parties agree to use the dispute resolution process in good faith and agree to
expedite, to the extent possible, the dispute resolution process whenever it is used. When either party
uses the dispute resolution in bad faith or for purposes of delay, the other party may seek sanctions.
61. The implementation of these dispute resolution procedures shall not provide a
basis for delay of any activities required in this Decree, unless Ecology agrees in writing to a schedule
extension or the Court so orders.
XIII. C.I".r,-oruTrf'ION PRO'T'ECTION
62. With regard to claims for contribution against the City of Yakima or its
Successors in Interest and Assigns for matters addressed in this Decree, Ecology agrees that the
lap/goodwill/consent decree draft 3 1!1194 9:19 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
GOODWILL INDUSTRIES SITE 16
PRESTON GATES 4 ES.IS
SOW Columbia Cesar
701 Fifth Meme
Seattle. Washington 91101
Tc ephaoe: (206) 623-7580
OFFICE COF THE CM' T YAKAtAS?RNEY
424 East Yakima Meuse. Ste. 100
Yakima. Wa,hangmo 91901
Telephone: (509) 575-8230
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of Yakima and its Successors in Interest and Assigns are entitled to protection from contribution
actions or claims as is provided by MTCA, RCW 70.105D•040(4)(d), as currently enacted or as may
be amended in the future, or as otherwise provided by law.
XIV. COVENANT NOT TO SUE UNDER M'I'CA: REOPENERS
63. In consideration of the mutual promises and covenants herein, Ecology hereby
covenants not to sue, not to execute judgment, nor to take any civil judicial, or administrative action,
nor to establish any lien against the City of Yakima or its Successors in Interest and Assigns for claims
pursuant to RCW 70.105D.040, as currently enacted or as may be amended in the future, or
otherwise under state or federal law with respect to PCE and TPH contaminated soils and other
hazardous substances encountered during the process of remediating PCE and TPH contaminated soils
in concentrations requiring remedial action under MTCA standards which are remediated by the City of
Yakima according to Ecology's requirements as of the date Ecology certifies completion as
contemplated is Paragraph 84. This Covenant Not to Sue does not apply to Ecology's claims with
respect to PCE and TPH contaminated soils and other hazardous substances encountered during the
Process of remediating PCE and TPH contaminated soils in concentrations requiring remedial action
under MTCA standards which are remediated by the City of Yakima according to Ecology's
requirements under RCW 70.105D.040, as currently enacted or as may be amended in the future,
arising from:
(1) The City of Yakima's or Successor in Interest and Assign's ownership
or operation or future acquisition of a property or business other than the Property.
(2) Successors in Interest and Assigns' activities prior to the effective date
of this Decree.
(3) Any liability arising from the City of Yakima's or Successors in Interest
and Assigns' activities as generator, transporter, broker, storage facility, user, distributor, blender, or
vendor of hazardous substances, or storage, use, management or other responsibility for hazardous
substances that result or have resulted in releases that would be sufficient to create liability under
lap/goodwill/consent decree draft 3 1/1194 9:19 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
GOODWILL INDUSTRIES SITE - 17
PRESTON GAZES a ELLIS
3000 C taatia Center
701 pint Avenue
Sable, Waabinpao 91104
Telepbooe: (206) 6237510
OFFICE OF THE TTORNEY
CITY O AKDAA
4Yakima. 100
91901
Telepnooe: (509) 575.6030
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RCW 70.105D.040(1)(c)-(e), as currently enacted or as may be amended in the future, except as
provided in the work plan in Attachment E.
64. The City of Yakima has consented to the consideration set forth in this Decree
and stipulated penalties set forth in Section X.
65. All of the City of Yakima's and its Successors in Interest and Assigns' rights,
benefits, and obligations under this Decree and Covenant Not to Sue may be assigned, transferred, and
shall run to any person that acquires an interest in the Property pursuant to the procedures set forth in
Section X and Section XI of this Decree. Such rights, benefits, obligations and the Covenant Not to
Sue shall not take effect until this Decree is amended pursuant to Section XL
66. The City of Yakima and Successors in Interest and Assigns agree not to assert
any claims or causes of action against the State Toxics Control Account, any local toxics control
account, or Ecology, for reimbursement of funds expended, or to seek any other costs, damages, or
attorney's fees from Ecology, with respect to any remedial activities undertaken or costs incurred
pursuant to this Decree, or arising from contamination on the property; provided, however, that
nothing contained in this paragraph shall be construed as precluding the City of Yakima, as a municipal
corporation, from applying for any available state grant funds.
67. Ecology retains all of its legal and equitable rights against all persons, except as
otherwise provided in this Decree. The legal and equitable rights retained by Ecology include, but are
not limited to, the right to compel any person, other than the City of Yakima or Successors in Interest
and Assigns, to take remedial actions for known, documented or suspected on or off-site
contamination, and to seek reimbursement against such persons for costs incurred by Ecology as a
result of such contamination.
68. Reopeners:
(1) Ecology reserves the right to seek modification of this Decree or to
institute an action under § 70.105D.050 of MTCA, as currently enacted or as may be amended in the
future, or take any other action authorized by law against any person, including the City of Yakir
lap/goodwill/coaseat decree draft 3 $/1194 9:19 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAA
GOODWILL INDUSTRIES Sl 1 h • 18
PRESTON GATES t 13115
5000 colada Center
701 Fifth Areca:
Semis. Wastnia;toa 9810;
Telepboae: (206) 623-7580
OFFICE OF THE CYTY ATrDRNEY
CITY OF YAKDdA
424 East Yakima Mem. fie. 100
Yaf�ma. Waebio8,o0 911901
Tetepbae: (509) 575.4030
its Successors in Interest and Assigns, if contamination unknown, undocumented or unsuspected to
exist on the Property at the time of entry of the Decree is discovered subsequent to entry of the Decree
3 ; and presents a previously unknown threat to human health or the environment. This reopener shall not
4 ; apply to unknown, undocumented or unsuspected contamination on the Property discovered
5 subsequent to entry of the Decree which is remediated during the Interim Action according to
6 i Ecology's requirements or where the City of Yakima or its Successors in Interest and Assigns agree to
P
7implement the response plan developed by the City of Yakima or its Successors in Interests and
�
8 Assigns and Ecology under Paragraph 43 at the time of discovery of such contamination.
9 (2) Ecology reserves the right to seek modification of this Decree or to
10 I institute an action under § 70.105D.050 of MTCA, as currently enacted or as may be amended in the
11 ? future, or take any other action authorized by law in the event the City of Yakima or its Successors in
12 Interest and Assigns fail to comply with the terms and conditions of this Decree, and after written
3 i notice of noncompliance fail to come into compliance. Ecology agrees that it will use good faith in
14 j determining whether to invoke this reopener. This reopener should ordinarily not be invoked, for
15 example, where the City of Yakima's or its Successors in Interest and Assigns' noncompliance with a
16 term or condition of this Decree results in an insignificant time delay in performance.
17
69. Prior to initiating any proceeding against the City of Yakima or Successors in
18 Interest and Assigns for liability with respect to the matters covered by the Covenant Not to Sue at
19 Paragraph 63 as a result of previously unknown, undocumented or unsuspected factors, or a breach of
20 this Decree, Ecology shall first provide the City of Yakima and Successors in Interest and Assigns an
21 opportunity to provide Ecology with evidence rebutting such claims, to which Ecology will respond in
22 j writing. In asserting this Decree as a defense in any proceeding by Ecology for costs or claims
23 � involving the Property, the City of Yakima and Successors in Interest and Assigns shall have the
24 burden of proving that such claim(s) were covered by this Decree or that such claim(s) were satisfied
25 performance of their obligations under this Decree.
j b y the
26 I 70. Applicability: Notwithstanding any other provisions of this Decree, Ecology
lap/goodwill/consent decree draft 3 8/1/94 9:19 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
GOODWILL INDUSTRIES SITE - 19
PRESTON GATES k EtL1S
5000 Columbia Center
701 R1 b Avenue
Seattle. Wastinpoe 98101
Telephone: (206) 623-7580
OFnCE Y OF AKTHE CMA
TTORNEY
OTlA
424 Eau Tains Avenue. Se. 100
jekephone6too 1
:: (509) 57575-6030
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reserves the right to assert, and the Covenant Not to Sue set forth in Paragraph 63 shall not apply
respect to, any claims or causes of action against the City of Yakima and Successors in Interest and
Assigns, either administrative or judicial, after the effective date of this Decree, arising from any:
(1) Release or threat of release of hazardous substances, pollutants or
contaminants, other than the hazardous substances remediated under the terms of this Decree, resulting
from the City of Yakima's or Successors in Interest and Assigns' ownership, operation, use, or
development of the Property;
(2) introduction of any hazardous substances, pollutant, or contaminant,
not including the hazardous substances remediated under the terms of this Decree, to or at the Property
in the future;
(3) Interference with any remediation of the Property conducted or required
by Ecology and any failure of the City of Yakima or Successors in Interest and Assigns to cooperate,
as required by MTCA, with Ecology, its employees, agents, contractors or other authorized
representatives conducting response activities under Ecology direction or oversight at the Property;
(4) Future transportation and disposal of hazardous substances from the
Property, except as provided under the work plan in Attachment E;
(5) Exacerbation of on-site contamination, by the City of Yakima or
Successors in Interest and Assigns;
(6) Failure to exercise due care with respect to any hazardous substances,
pollutants or contaminants at the Property;
(7) Any and all criminal liability;
(8) Claims based on failure of the City of Yakima or Successors in Interest
and Assigns to meet a requirement of this Decree, except as provided in Paragraph 56 with respect to
notification only; or
(9) Liability for damages for injury to, destruction of, or loss of natural
resources.
lap/goodwill/consent demee draft 3 811/94 9:19 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAIA
GOODWILL INDUSTRIES STt b - 20
• PRESTON GATES & ELLIS
5000 Cambia Center
701 Fifth Avenue
Seattle, Washington 911104
Telephone: (206) 623-7580
OFFICE OFTim: CITY ATTORNEY
CITY OF YAKD.4A
424 Easy Yakima Avenue. S. 100
Yakima. Wa,bingtoo 98901
Telephone: (509) 575-6030
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XV. THE CITY OF YAKIMA RESERVATION OF RIGHTS
71. The City of Yakima and any Successors in Interest and Assigns reserve all
rights and defenses which they may have and which are not otherwise addressed in this Decree. The
execution of the "Agreement of Successors in Interest and Assigns" attached hereto as Attachment G or
an amendment to this Decree by the City of Yakima or Successors in Interest and Assigns is not an
admission of liability on their part.
72. Except as provided herein for the City of Yakima and Successors in Interest and
Assigns, this Decree does not grant any rights or affect any liabilities of any person, firm or
corporation or subdivision or division of state, federal, or local government.
XVI. =CLAMOR
73. This Decree in no way constitutes a finding by Ecology as to the risks to human
health or the environment that may be posed by contamination at the Property.
XVII. RETENTION OF RECORDS
74. The City of Yakima and Successors in Interest and Assigns shall retain for a
minimum of ten (10) years, all business records, reports, and contracts, except those documents
previously provided to Ecology, as referenced in Paragraphs 25 through 30, that relate to the work
performed by that party and Assigns pursuant to Section V above, or that relate to the Present
Contamination and known, documented and suspectedoff-sitecontamination if and when such
contamination migrates onto the Property. Thereafter, no such record shall be destroyed unless notice
of the destruction is provided to Ecology by registered mad at least sixty (60) days prior to the
destruction. All non -privileged archived records, until destroyed pursuant to this Paragraph, shall be
made available for copying upon Ecology's written request.
XVIII. SITE ACCESS
75. The City of Yakima and Successors in Interest and Assigns grant to Ecology,
its employees, agents, contractors and authorized representatives, an irrevocable right to enter upon the
Property, with reasonable notice and at any reasonable time for purposes of allowing Ecology to
lap/goodwill/coaseet decree draft 3 */1194 9:19 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
GOODWILL INDUSTRIES SITE - 21
PRESTON GATES & E LIS
5000 Columbia Ceuta
701 Piftb Mew
Sc.leWaattnkton 91104
Telepbooe: (206) 623-7580
OFFICE CTTTORNEY
TY OF YAKIMA
424 Ea! Yakima Meese. Ste. 100
Yakima. Waam°ttO° 91901
Tekpnone: (509) 575-6030
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monitor or enforce compliance with this Decree. This right of entry is in addition to any right Ecolr
may have to enter onto the Property pursuant to specific statutory or regulatory authority. Consistent,
with Ecology's responsibilities under state and federal law, Ecology, and any persons acting for it,
shall use their best efforts to minimize any interference and use their best efforts not to unreasonably
interfere with the operations of the City of Yakima or Successors in Interest and Assigns by any such
entry. In the event Ecology enters the Property for reasons other than emergency response, Ecology
agrees that it shall provide reasonable advance notice to the City of Yakima or its Successors in Interest
and Assigns of any planned entry, as well as schedules and locations of activity on the Property.
Ecology further agrees to accommodate reasonable requests that it modify its scheduled entry or
activities at the Property.
76. Notwithstanding any provision of this Decree, Ecology retains all of its access
authorities and access rights, including enforcement authorities related thereto, under M'I'CA and any
other applicable state statute or regulations.
77„ Nothing in this Decree shall in any manner restrict or limit the nature or scop,.,.
response actions which may be taken by Ecology in fulfilling its responsibilities under state or federal
law. The City of Yakima recognizes that even with the use of best efforts on the part of Ecology, the
implementation of response actions at the Property may interfere with the City of Yakima''s or
Successors in Interest and Assigns' use or development of the site. The City of Yakima and
Successors in Interest and Assigns agree to cooperate with Ecology in the implementation of response
actions, provided that they do not waive any due process rights related thereto unless specifically
waived pursuant to this Decree.
XIX. OTHER APPLICABLE LAWS
78. The City of Yakima and Successors in Interest and Assigns agree that they will
abide by all federal and state laws and regulations and that they will exercise due care with respect to
any hazardous substances, pollutants, or contaminants at the Property unless a higher standard of care
is required by law.
lap/goodwill/consent decree draft 3 MAN 234 PM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
GOODWILL INDUSTRIES SITE - 22
PRESTON GATES t E LLIS
5000 Columbia Cerra
701 firth Avenue
Seattle, Waabinston 98104
Telepbom: (206) 623-7580
OFFICE OF THE �AORiE1
CITY YAKIMA
424 East Ya1tma Areaae, Sae. 100
Yams, Washington 98901
Teltpbae: (509) 575-6C30
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XX. DURATION OF DECREE AND RETENTION OF JURISDICTION
79. This Decree shall remain in effect and this Court shall retain junsdicnon over
both the subject matter of this Decree and the parties for the duration of the performance of the terms
and provisions of this Decree for the purpose of enabling any of the parties to apply to the Court,
consistent with the dispute resolution process set forth in Section XII, and the amendment process set
forth in Section XI, at any time for such further order, direction, and relief as may be necessary or
appropriate to ensure that obligations of the parties have been satisfied.
XXI PLBjjC NOTICE_AN12WJ' WAL OF CONSENT
80. This Decree has been the subject of public notice and comment under RCW
70.105D.040(4)(a). As a result of this process, Ecology has found that this Decree will lead to a more
expeditious cleanup of hazardous substances at the Property, in compliance with applicable cleanup
standards, and is in the public interest.
81. If the Court withdraws its consent, this Decree shall be null and void at the
option of any party. In such an event, no party shall be bound by the requirements of this Decree.
XXII. REMEDIAL ACTION COSTS
82. City of Yakima shall pay to Ecology costs incurred by Ecology pursuant to this
order. These costs shall include work performed by Ecology or its contractors at the site under
Chapter 70.105D RCW both prior to and subsequent to the issuance of this order for investigations,
remedial actions, and order preparation, oversight and administration. Ecology costs shall include
costs of direct activities and support costs of direct activities as defined in WAC 173-340-550(2). City
of Yakima shall pay the required amount within ninety (90) days of receiving from Ecology an
itemized statement of costs that includes a summary of costs incurred, an identification of involved
staff, and the amount of time spent by involving staff members on the project. A general description
of work performed will be provided upon request. Itemized statements shall be prepared quarterly.
Failure to pay Ecology's costs within ninety (90) days of receipt of an itemized statement of costs will
result in interest charges pursuant to WAC 173-340-550(4).
tap/Eoodwill/conseat decree draft 3 811/94 9:4E AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
GOODWILL INDUSTRIES SITE - 23
PRESTON GATES t Etas
5000 Columbia Caner
701 Rita Meow
Stank. Wasbinttoo 98104
Tekpaaar: (206) 623-7580
OFFICE OF
OF AKIMA
424 Fast Yabma Maas. Ste. 100
Wasbingtoo
Tekm
pbe (508) 5759 ,
6030
XXIII. EFFECTIVE .fes
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83. The effective date of this Decree is the dlate on which title to the Property veslb
3 in the City of Yakima.
4 ; 84. The City of Yakima may request, and Ecology may not unreasonably refuse to
5 provide, certification by Ecology that all requirements of this consent decree pertaining to soil
6 remediation have been completed by the City of' Yakima. Similarly, the City of Yakima may request„
7 and Ecology may not unreasonably refuse to provide, certification by Ecology that all requirements of
8 this consent decree pertaining to groundwater monitoring have been completed by the City of Yakima.
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So ordered this ® day of 1994.
Judge
Yakima County Superior Court
The undersigned parties enter into this Prospective Purchaser Consent Decree on the
date specified below.
THE CITY OF YAKIMA
By:
By:
Date.
v_.�.
By:
Date;_._
)ap/goodwilUcoDient dexree drift 3 $/1194 9:53 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
GOODWILL INDUSTRIES sri h - 24
PRESTON GATES & 1Eu1S
5000 Columbia Caner
701 R1tb Awe
Searle, Washington 9$104
Telephone: (206) 623-75$0
OFFXE OP THE ArroRsEY
CITY OF YCITYAKIM
424 East Yalama Armee, Ste. 100
Yakima. Washington 9$901
Te bone: (509) 5756030
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DEPARTMENT OF ECOLOGY
By:
Date;
By:
Date;
By:
Date -
ATTORNEY GENERAL'S OFFICE
By:
Date;
By:
Date:
By:
Date:
lap/goodwill/consent decree draft 3 8/1/94 9:53 AM
PROSPECTIVE PURCHASER
CONSENT DECREE RE: YAKIMA
( flODWILL INDUSTRIES SITE - 25
PRESTON GATES & ELLIS
5000 Columbia Cerra
701 ARL Meow
f$tl Wasbiaroa Rt104
Tekpboae: (206) 6217560